Should I push for a divorce in the UK?

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I was born in north-west London and married a Frenchman in France more than a decade ago. We have a young daughter and are getting divorced after I’ve suffered years of financial and emotional abuse. My husband, who has been the breadwinner, wants the divorce to take place in France, but I’ve been told by friends that it will be financially advantageous for me to get divorced in the UK. Advice from a lawyer would be much appreciated.

Naushaba Awan, associate in the family law team at JMW Solicitors in London, says your experience of financial and emotional abuse by a spouse is sadly all too common both here in the UK and in France.

While England recognises that economic and emotional abuse are a form of domestic abuse, which is enshrined in law in the Domestic Abuse Act 2021, recent case law confirms that abuse will affect the financial settlement on divorce only in the rarest of cases. The current law makes it very clear that the financial proceedings cannot be used as an opportunity to “punish” the abuser. This is a complex area of law, so it’s crucial to obtain specialist advice at an early stage.

Historically, the court in England and Wales has been seen as more accommodating than France to the financially weaker spouse. For example, if you were a stay-at-home parent throughout the marriage, while your spouse financially supported the family, the court will generally give equal weight to both contributions. This includes pensions. Your husband may have accrued a significant pension during the marriage and, under English law, you have an entitlement to share in that pension.

England is a highly discretionary jurisdiction, but generally in cases such as yours which involve a medium-length marriage — 10 years or more including cohabitation — and there are children, the parties’ housing and income needs will take precedence. This means that if marital resources are insufficient to meet the divorcing parties’ needs, the court will draw on non-matrimonial assets, which can include inheritance or assets held before the marriage. Fairness is the watchword in the English court.

In France, the default position is that, in the absence of a prenuptial agreement stating the contrary, the assets acquired during the marriage will be shared equally on divorce. Pensions cannot be shared. Private pension rights can be higher in England than France so it may be that your husband is pressing for divorce in France to avoid sharing his pension pot. In France this could be prevented by securing a lump sum, to “compensate” you for any disparity in pension.

Navigating divorce and the legal system in a foreign language can be challenging and as a victim of domestic abuse you may find this even harder. Dependent on your circumstances, England may be the more advantageous jurisdiction for you but it is important that you obtain advice early that is specific to your situation. Do this sooner rather than later — if your husband files for divorce in France first, the burden will be on you to set out why France should decline jurisdiction, and you will need to file proceedings in England.

Can I challenge my mother’s will?

I have heard from another family member that my mother, with whom I have a strained relationship, has recently changed her will, has left me out and is leaving everything to my three brothers instead, at their suggestion. Is there anything I can do to challenge this now?

Jennifer Quick, an associate solicitor at Taylor Walton solicitors, says will disputes are increasingly common and discovering that a parent has left you out of their will can be deeply upsetting. 

In this situation, where your mother is still alive, it’s important to note that you cannot challenge a will before her death. A testator is entitled to change their will at any time provided they have testamentary capacity, and they are not being unduly influenced by others.

If your relative is correct and the will has been changed at your brothers’ suggestion, that might indicate some level of coercion.

While your mother is alive, it may be beneficial to communicate with her directly to get a better understanding of the reasons behind her decision. There is a possibility she may have been misinformed or pressed into altering her will, and a gentle conversation may encourage her to reconsider. If it isn’t possible to make contact, then you should gather as much evidence as possible in case you need to challenge the will after her death. It is important to keep a record of conversations or messages and any other relevant evidence.

A will may be contested on several legal grounds, including lack of capacity, undue influence, lack of knowledge and fraud or forgery. If you intend to challenge the will after your mother’s death, it is important to act promptly. If you seek legal advice at an early stage, it will allow your solicitor to assess the facts and evidence to determine whether you have grounds to bring a claim. 

Your solicitor may recommend entering a caveat on the estate, which will have the effect of preventing the executors from following the will’s instructions while its validity is investigated. The possibility of a settlement should always be explored early in the process to establish whether you can reach an agreement with the executors. If an agreement cannot be reached, litigation may be necessary. However, your solicitor will be able to advise you fully on the risks and benefits of pursuing your challenge to the will through the courts. 

The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.

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